HEARN, C.J.: Sheriff
Leon Lott, in his official capacity as Sheriff of Richland County, appeals the circuit court’s failure to grant
his motions for directed verdict and judgment
notwithstanding the verdict (JNOV), as well as his post-trial motions for a new
trial absolute and new trial nisi. We affirm.

FACTS

The Richland County Sheriff’s Department (Department) was conducting an
investigation on a former deputy, Brian Gailey, based on allegations of
criminal activity. The Department became convinced then-current deputy Shawn Swicegood
had information on Gailey because the two were friends and former co-workers. Upon
arriving at work on February 28, 2003, Swicegood was taken into the office of
Chief Investigator David Wilson for questioning. Swicegood repeatedly denied having
any knowledge of Gailey’s alleged illegal activity.

Wilson did not
believe Swicegood, asking him if he would submit to a polygraph examination. Swicegood
agreed, and ultimately was administered three polygraph exams, which the
Sheriff’s Department believed indicated Swicegood had not told the truth. In
preparation for the polygraph, Swicegood told the examiner he was in possession
of an unauthorized assault rifle which he had built from scrap metal pieces.
The Department contacted the Bureau of Alcohol Tobacco and Firearms, and
federal weapons charges were initiated against Swicegood, to which he
ultimately pled guilty and served eighteen months in federal prison.

On the same day,
and after Swicegood’s interrogation had begun, Department Captain James Stewart,
at Wilson’s direction, began looking into the hours Swicegood had reported on
his Department timesheet. Specifically, Stewart was directed to compare
Swicegood’s reported hours as a deputy, against the hours Swicegood had
reported participating in the Department’s Special Duty Program. The program,
also known as moonlighting, was encouraged by the Department as an opportunity
for deputies to find extra work to supplement their incomes. Swicegood
participated in the moonlighting program, including providing security at a
Cash-O-Matic location. Stewart’s investigation ultimately yielded three
instances where Swicegood’s security moonlighting overlapped with hours he had
submitted to the Department for his deputy duties.[1]
These instances were for fifteen minutes each, and because Stewart believed
this represented a pattern, he did not approach Swicegood in order to allow him
a chance to explain the discrepancies. Instead, Stewart went to a magistrate
and swore out three warrants for Swicegood’s arrest for obtaining signature or
property by false pretenses.

The three warrants were
then given to Wilson to serve on Swicegood during the still ongoing interrogation.
Throughout the interrogation, Wilson stated he would make both the state and
federal charges “go away” if Swicegood would give the information that the
Department wanted on Gailey. When Swicegood refused to perjure himself, he was
arrested, and spent approximately the next eighteen hours in jail. By the time
Swicegood posted bail, reports of his arrest and charges had been given by the
Department to The State newspaper, other news agencies, and were posted on the
internet.

Swicegood brought an action for false arrest,
malicious prosecution, abuse of process, and negligence against Lott in his
official capacity. On summary judgment motion, the circuit court dismissed
Stewart as a defendant, and dismissed all causes of action against Lott except
for the abuse of process claim. A jury trial was held only on the abuse of
process action which resulted in a $150,000 jury verdict in favor of
Swicegood. This appeal followed.

STANDARD OF REVIEW

“In ruling on motions for directed verdict and JNOV,
the trial court is required to view the evidence and the inferences that
reasonably can be drawn therefrom in the light most favorable to the party
opposing the motions and to deny the motions where either the evidence yields
more than one inference or its inference is in doubt.” Law v. S.C. Dept. of
Corrections, 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006). An appellate
court will only reverse the trial court’s ruling on a JNOV motion when there
is no evidence to support the ruling or where
it is controlled by an error of law. Id. at 434-35, 629 S.E.2d at 648

LAW/ANALYSIS

I. Sovereign Immunity
Under S.C. Code Ann. § 15-78-60(17)

Lott contends the
circuit court erred in denying his motions for a directed verdict and judgment
notwithstanding the verdict (JNOV) on the grounds that he is entitled to sovereign
immunity pursuant to an exception of the general waiver of immunity under the
South Carolina Tort Claims Act.[2]
Specifically, Lott maintains an action for abuse of process necessarily
involves alleging elements of actual malice and intent to harm, for which he
would be entitled to immunity as a matter of law under Section 15-78-60(17) of
the South Carolina Code (2005). We disagree.

The tort of abuse
of process consists of two elements: an ulterior purpose, and a willful act in
the use of the process that is not proper in the regular conduct of the
proceeding. Hainer v. Am. Med. Int'l, Inc., 328 S.C. 128, 136, 492
S.E.2d 103, 107 (1997). In explaining the elements of abuse of process, the
circuit court charged the jury that Swicegood must prove by a greater weight or
preponderance of the evidence that Lott “had some ulterior purpose or bad
intent.” Additionally, in explaining the second element of the tort, the
circuit court explained “it is the malicious misuse or perversion of the
process for a result that’s not legitimate for its purpose that constitutes an
abuse of process.”

Section 15-78-60(17)
provides: “The governmental entity is not liable for a loss resulting from . .
. (17) employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to
harm, or a crime involving moral turpitude.” (emphasis added). Thus, Lott
contends, the preceding jury charge necessarily involves a finding of both
malicious conduct sufficient to rise to the level of actual malice, and intent
to harm. As stated above, the tort of abuse of process contains neither an
element of intent to harm, nor actual malice. Although harm may result from
the “bad intent” used by the circuit court to describe an ulterior purpose,
proving an abuse of process claim does not require a party to intend such
harm. SeeEldeco, Inc. v. Charleston County Sch. Dist., 372 S.C.
470, 481, 642 S.E.2d 726, 732 (2007) (finding the comparable torts of tortious
interference with contractual relations, and intentional interference with
prospective contractual relations do not contain an intent to harm element
providing immunity under § 15-78-60(17)).

Similarly, there is
no required element of actual malice. Actual malice in this situation refers
to common law actual malice, and has been defined by situations where “defendant
was actuated by ill will in what he did, with the design to causelessly and
wantonly injure the plaintiff.” Jones v. Garner, 250 S.C. 479, 488, 158
S.E.2d 909, 914 (1968); seealso Hubbard and Felix, The South
Carolina Law of Torts, p. 398. The improper purpose element of an abuse of
process claim usually takes the form of coercion to obtain a collateral
advantage, not properly involved in the proceeding itself. Therefore, it is
the use of the process to coerce or extort that is the abuse, and need not be
accompanied by any ill will. As the tort of abuse of process does not require
a finding of actual malice or intent to harm, the circuit court did not err in
denying Lott’s motions for directed verdict and JNOV as to his immunity under §
15-78-60(17).

II. Arrest Warrants
Carried To Their Authorized Conclusion

Lott
next contends the circuit court erred in failing to grant his motions for
directed verdict and JNOV because the process had been carried to its
authorized conclusion. We disagree.

Lott
maintains that because the arrest warrants obtained by Stewart for the alleged
double-dipping were carried to their authorized conclusion, i.e., Swicegood was
taken to trial and the charges were ultimately dismissed, then there should be
no liability for the tort of abuse of process. This logic is
misplaced. Lott relies upon the isolated statement in Guider v.
Churpeyes, Inc. that “[r]egardless, there is no liability
when the process has been carried out to its authorized conclusion, even though
with bad intentions.” 370 S.C. 424, 432, 635 S.E.2d 562, 566 (Ct. App.
2006) (emphasis added). However, this statement should not be interpreted
to mean that no liability may ever arise where the process is carried to its
authorized conclusion. Indeed, the essence of the tort of abuse of
process centers on events occurring outside of the process, namely:

The
improper purpose usually takes the form of coercion to obtain a collateral
advantage, not properly involved in the proceeding itself, such as the
surrender of property or the payment of money, by the use of the process as a
threat or club. There is, in other words, a form of extortion, and it is what
is done in the course of negotiation, rather than the issuance or any formal
use of the process itself, which constitutes the tort.

Huggins v. Winn-Dixie
Greenville, Inc., 249 S.C. 206, 209,
153 S.E.2d 693, 694 (1967) (citation omitted). The existence of probable
cause for the double-dipping arrest warrants is not in dispute.
Nonetheless, there is clearly evidence in the record the Department initiated
the investigation into Swicegood’s moonlighting with the intent of coercing him
into implicating Gailey. The “willful act” element of the abuse of process
tort has been interpreted by this court to consist of three different
components: 1) an act that is either willful or overt; 2) in the use of the
process; 3) that is ultimately reprehensible because it is either (a) unauthorized
or (b) aimed at an illegitimate collateral objective. Food Lion, Inc. v.
United Food & Commercial Workers Intern. Union, 351 S.C.65, 71, 567
S.E.2d 251, 254 (Ct. App. 2002). The evidence before us is sufficient to
create a jury question as to both the ulterior purpose element and all three
aspects comprising the willful act element.

Our decision that a jury issue was created on the peculiar facts of this case
should not be interpreted to chill law enforcement activity in its legitimate
procurement of cooperation to further investigations. The eliciting of
cooperation from an accused in one case in exchange for leniency with existing
charges, where the accused genuinely has information that would benefit law
enforcement, does not, and never has fallen within the tort of abuse of
process. Here, however, taking the facts in the light most favorable to Swicegood, as we must for the purposes of evaluating this issue at the directed
verdict and JNOV stage, the evidence is susceptible to the inference that the
primary purpose of the investigation and issuance of warrants was to coerce or
extort Swicegood’s testimony against Gailey, even though he had previously
indicated he had no knowledge that would further the Department’s
investigation. Thus the facts of this case are distinguished from normal
police investigative procedure. As a result, the circuit court did not err in
denying Lott’s motions on this issue.

III. Causal Connection
Between the Abuse of Process and Damages

Lott
next contends the circuit court erred in denying his motions for directed
verdict and JNOV because Swicegood failed to prove the causal connection
between the alleged misuse of the process and his claimed damages. He
maintains that under abuse of process, recoverable damages are only those
resulting from the misuse of the process, but not those losses resulting from
the proper use of the process.

The
South Carolina Supreme Court has addressed the issue of damages in an abuse of
process action in the second Huggins case to come before the court after
remand and appeal. It provides an appropriate explanation of the damages
recoverable from an abuse of process claim. Huggins v. Winn-Dixie
Greenville, Inc., 252 S.C. 353, 166 S.E.2d 297 (1969). The court concluded
“[d]amages recoverable for abuse of process are compensatory for the natural
results of the wrong, and may include recompense for physical or mental injury;
expenses; loss of time; and injury to business, property or financial standing.” Id. at 362, 166 S.E.2d at 301 (citation omitted). In finding that
once abuse of process is proven, damages are recoverable, the court went on to explain
that “there may be recovery without proof for harm to the plaintiff’s
reputation, standing and credit,” as well “as to humiliation and other mental
suffering or injury to [a person’s] feelings.” Id. at 363, 166 S.E.2d
at 301 (citation omitted). Moreover, if some damage to the reputation could be
considered a natural and probable consequence of the abuse of process, then
submission to the jury is proper, even if there was no proof as to the damage. Id. Swicegood testified as to the frustration, embarrassment, and
humiliation he experienced having to face his family, friends and members of
his church, after his arrest had been leaked to the press. We find this to be
sufficient evidence to support the submission of damages to the jury.

IV. New Trial; New Trial NisiRemittitur

Lott next contends
the circuit court erred in failing to grant his post-trial motion for a new trial
absolute. We disagree.

A circuit court may
grant a new trial absolute on the ground that the verdict is excessive or
inadequate. Rush v. Blanchard, 310 S.C. 375, 379, 426 S.E.2d 802, 805
(1993). The circuit court should grant a new trial absolute on the
excessiveness of the verdict only if the amount is so grossly inadequate or
excessive as to shock the conscience of the court and clearly indicates the
figure reached was the result of passion, caprice, prejudice, partiality,
corruption or some other improper motives. Id. at 379-80, 426 S.E.2d at
805.

The grant or denial
of new trial motions rests within the discretion of the circuit court, and its
decision will not be disturbed on appeal unless its findings are wholly
unsupported by the evidence, or the conclusions reached are controlled by error
of law. Umhoefer v. Bollinger, 298 S.C. 221, 224, 379 S.E.2d 296, 297
(Ct. App. 1989). “In deciding whether to assess error to a court’s denial of a
motion for a new trial, we must consider the testimony and reasonable
inferences to be drawn therefrom in the light most favorable to the nonmoving
party.” Id.

Lott first
maintains the circuit court erred in denying his motion for a new trial
absolute because the jury’s charge, which defined ulterior purpose as “bad
intent,” was incorrect and confusing to the jury. Lott failed to lodge an
objection at the close of the jury charge. Only after the jury requested to be
re-charged on the law of abuse of process and ulterior motive did counsel take
exception to the charge. SeeLundy v. Lititz Mut. Ins. Co., 232
S.C. 1, 10, 100 S.E.2d 544, 548 (1957) (finding an objection was waived as
untimely, where counsel did not object at the conclusion of the main charge,
but later objected to additional instructions that were substantially the same
as the main charge).

Lott next contends
the circuit court erred because of the excessiveness of the verdict. We
disagree. Swicegood lost his job, and testified as to the humiliation he felt
amongst his family, friends and church members as a result of this process,
and, as noted above, this is evidence of compensable damages for an abuse of
process claim. The circuit court did not abuse its discretion in finding the
award of $150,000 was neither so excessive as to shock the conscience, nor the
result of passion, caprice, prejudice, partiality, corruption or some other
improper motives.

Finally, Lott
contends the circuit court erred in failing to grant his motion for a new trial nisiremittitur. Although Lott claims to have made a nisi motion, and that it was denied by the circuit court, a review of the record
before us finds no motion for a new trial nisi. As a result, this issue
is unpreserved for our review. SeePeterson v. Richland County,
335 S.C. 135, 515 S.E.2d 553 (Ct. App. 1999) (although brief indicated that a
motion to reconsider was filed and denied, neither the motion nor the order
were in the record on appeal).

We hold the circuit court did not err in failing to grant Lott’s motions for
directed verdict and JNOV, or his
post-trial motions for a new trial absolute and new trial nisi. Accordingly,
the decision of the circuit court is

AFFIRMED

PIEPER, J., and GOOLSBY,
A.J., concur.

[1] Based on Swicegood’s annual wage at the time, each
alleged instance amounted to $3.75 of “double-dipping.” Additionally,
testimony indicates it was common practice to fill out timesheets with expected
hours at the beginning of each month, before actually working the hours.